Opinion
No. 04-15-00562-CV
01-06-2016
IN THE INTEREST OF M.R.B., et al., Children
MEMORANDUM OPINION
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-02658
Honorable Karen Crouch, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
The Honorable Larry Noll is the presiding judge of the 408th Judicial District Court, Bexar County, Texas. However, the termination order in this matter was signed by the Honorable Karen Crouch, presiding judge of County Court at Law No. 10, Bexar County, Texas.
Appellant Jasmine appeals the trial court's order terminating her parental rights to her children, M.R.B., A.L.B., and D.J.B. In her only issue, Jasmine asserts the evidence was neither legally nor factually sufficient for the trial court to find, by clear and convincing evidence, that terminating her parental rights was in her children's best interests. We conclude the evidence is both legally and factually sufficient, and we affirm the trial court's order.
For purposes of this appeal and for the privacy of the children, we refer to the appellant and the foster mother by their first names and the children by their initials. --------
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2014, the Department of Family and Protective Services petitioned to remove Jasmine's children from her for allegations of neglectful supervision. The trial court granted the petition and appointed the Department as temporary sole managing conservator of the children. After several permanency hearings and a bench trial on the merits, on September 3, 2015, the trial court terminated Jasmine's parental rights to her three children based on subparagraphs (D), (E), and (O) of Family Code section 161.001(1), see TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2015), and because it was in the children's best interests, see id. § 161.001(b)(2).
Jasmine does not challenge the trial court's findings concerning the statutory grounds for involuntary termination of her parental rights. See id. § 161.001(b)(1); see also In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). Instead, she argues the trial court erred because the evidence was neither legally nor factually sufficient for it to find, by clear and convincing evidence, that terminating her parental rights was in her children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2); accord In re J.F.C., 96 S.W.3d at 261.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).
An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d at 261. "There is a strong presumption that the best interest of a child is served by keeping the child with its natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interest of the child." Id.
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court "determines [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true," the evidence is legally sufficient. See id. (quoting In re J.F.C., 96 S.W.3d at 266).
Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.
B. Best Interests of the Children
A trial court may terminate a parent's rights to a child if it finds, inter alia, such "termination is in the best interest of the child." TEX. FAM. CODE ANN. § 161.001(b)(2); accord In re J.F.C., 96 S.W.3d at 261.
1. Evidence Regarding the Children's Best Interests
Applying the applicable standards of review for sufficiency of the evidence, we examine all the evidence, see In re J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (crediting or disregarding evidence), and recite below the evidence that especially pertains to the Holley factors, see Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). During pendency of the case, Jasmine failed to provide any support for the children, either emotionally or physically. Additionally, she failed to appear for visitation for over half the scheduled visits. During the trial, the trial court heard from seven witnesses and arguments of various counsel for the Department, Jasmine, and the children's attorney ad litem.
a. Norma Hayes
Norma Hayes was employed as a family-based caseworker by the Department. Based on allegations of domestic violence in the home, Hayes began working with Jasmine on September 15, 2014. Hayes did the appropriate assessment and then never saw Jasmine again. After several attempts to locate Jasmine, in November of 2014, the case was moved to the investigation department to try and locate both Jasmine and the two small children.
Hayes explained that because the children were removed shortly thereafter, Jasmine's case was closed.
b. Lindy Hall
The next witness called to testify, Lindy Hall, was an investigator with the Department of Family and Protective Services in Kendall County. Hall responded to a Priority One referral— nine-month-old A.L.B. presented at the hospital with three subdural brain bleeds and a one inch bruise on her head near the brain bleed. After the examination, Hall also learned the baby suffered buckle-fractures to both her right tibia and right fibula near her ankle.
After an investigation, Hall testified the Department found reason to believe physical abuse of A.L.B. and neglectful supervision of A.L.B. and M.R.B. Hall further explained, that in her opinion, the neglectful supervision stemmed from Jasmine's use of drugs as indicated by her positive drug test for marijuana.
c. Angela Christman
Angela Christman, the legal caseworker for the Department, testified as to Jasmine's progress throughout the pendency of the case. Christman testified she personally explained and reviewed the Department's service plan with Jasmine, and that Jasmine signed the service plan. Yet, Jasmine failed to complete the plan. Specifically, Jasmine refused to submit to random drug testing or engage in substance abuse treatment. Jasmine tested positive on March 4, 2015, for both amphetamines and methamphetamines. As a result of Jasmine's failure to obtain and maintain income or permanent, stable housing for the children, Christman believed Jasmine did not possess the means of buying the necessary food or the ability to secure day care.
Christman further testified Jasmine failed to appear for counseling; appointments were made for two different therapists and, because Jasmine was a no show, both counselors dropped Jasmine as a client. Although Jasmine completed her psychological and her psychiatric evaluations, she did not participate in any therapy. After A.L.B. and M.R.B. were removed from the home, on February 13, 2015, Jasmine gave birth to a third child, D.J.B. D.J.B. was removed shortly after birth based on domestic violence between Jasmine and her mother.
Jasmine was awarded weekly visits with the children, contingent upon negative drug tests. Christman testified that Jasmine participated in only half of the last sixteen visits, including the last three visits prior to the hearing.
Christman also testified as to her concerns regarding Jasmine's care of the children. During the pendency of the case, Jasmine understood A.L.B. was seriously injured with three brain bleeds, two broken legs, and a hemorrhage in her eye. However, Christman explained that Jasmine could never provide an explanation for A.L.B.'s injuries.
Additionally, during a home visit, Christman noted the children were dirty and looked as if their clothes had not been changed and the children had not been bathed. Jasmine relied on the assistance of two-year-old M.R.B. to care for her toddler sister. Both children were diagnosed with failure to thrive and were not receiving the necessary food and nutrition. During several of the visitations that Jasmine did attend, Jasmine failed to bring food when she was supposed to bring the children dinner; instead, Jasmine appeared to believe a bag of chips was sufficient for their dinner.
Finally, Christman opined that termination was "absolutely" in the children's best interests. She further explained this opinion was based on the children's injuries, the domestic violence in the home, and Jasmine's failure to demonstrate any positive changes during the pendency of the case.
d. Jasmine
Jasmine testified during the termination hearing. She denied being involved in a domestic violence relationship with the children's father. When asked about the number of missed visitations, Jasmine explained she was staying with a friend between September and November, and that she had not finished moving and was not stable. She acknowledged being unemployed and failing to attend counseling.
Jasmine also testified that she was currently staying with her brother-in-law, but that she did not have a phone or transportation. Although she denied drug use during the pendency of the case, she did acknowledge taking Tylenol 4 for back pain, clozapine for anxiety, and a muscle relaxer.
e. Carrie W.
Carrie, the children's foster mother, testified that A.L.B. and M.R.B. had been in her home since January 21, 2015, and D.J.B. since February 26, 2015. She testified the children had no interaction with each other when they arrived, "like they didn't really know they were sisters." She further described both girls as very small and skinny. Carrie described M.R.B. as very withdrawn, timid, and scared. A.L.B., on the other hand, was very warm and friendly, but very tiny for her age; she was not yet crawling and when she learned to crawl, she would drag one leg behind her. Carrie further relayed her schedule taking A.L.B. to her litany of doctor appointments—physical therapy, developmental specialist, neurosurgeon and neurologist, and an ophthalmologist.
f. CASA Volunteer
The children's Court Appointed Special Advocate volunteer strongly urged the court to allow the children to remain in the foster-to-adopt home and recommended the court terminate Jasmine's parental rights. According to the CASA volunteer, Jasmine lacks both the ability to provide for the children and a support system to assist her. She described several medical issues for which A.L.B.'s caregiver will need focus, dedication, determination, and stability. Because the CASA volunteer did not believe Jasmine was able to provide these needs, she opined that termination was "absolutely" in the children's best interests.
g. Kathleen Buckley
The final witness was Kathleen Buckley, a pediatric nurse practitioner at Center for Miracles. Buckley testified that on November 9, 2014, A.L.B. presented with superficial scratches to her face, a red bruise to the back of her head, a fracture to the end of her right tibia, a buckle fracture to the end of her right fibula, and a subdural hematoma in her brain. Buckley testified her concern for the child was elevated when none of the family members could provide her with a reasonable trauma history that would explain A.L.B.'s injuries. Based on her investigation, Buckley determined the injuries were non-accidental. C. Holley Factors
The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witness. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (requiring appellate deference to the fact-finder's findings); City of Keller, 168 S.W.3d at 819. The factors a fact-finder uses to ascertain the best interest of the children were set forth in Holley, 544 S.W.2d at 371-72; accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors). The Holley court warned that "[t]his listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent." Holly, 544 S.W.2d at 372. We address the major issues faced by the trial court below.
1. The Desires of the Children
In the present case, the children were too young to testify about their desires. M.R.B. was only two-years old when the children were removed and the two younger children, A.L.B. and D.J.B., did not appear to even understand that Jasmine was their mother. The children are clearly too young to express their wishes, but the evidence shows the children are doing well in the foster parents' residence. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (finding that two-year-old child was too young to testify about his desire regarding termination).
We conclude the young age of the children renders any consideration of the children's desires neutral. See In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
2. The Emotional and Physical Needs of the Children and Protecting the Children from Danger Now and in the Future
The Department was originally contacted regarding allegations of domestic violence in the home in September of 2014. An assessment was conducted and, according to the caseworker, she never heard from Jasmine again. Four months later, M.R.B. and A.L.B. were removed from the home following a Priority One referral. When the Department's investigation began, A.L.B. was in the perinatology unit at the hospital suffering from three subdural brain bleeds, a one inch bruise near the brain bleed located on her head, and two buckle fractures in her leg. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth, 2003, no pet.) ("[A]busive or violent conduct by a parent or other resident of a child's home may produce an environment that endangers the physical or emotional well-being of a child.").
Throughout the pendency of the Department's involvement with Jasmine, Jasmine's actions showed her inability to care for the emotional and physical needs of the children and to protect her children from danger. In addition to injuries reported by the hospital, M.R.B. and A.L.B. were diagnosed with failure to thrive and were malnourished. After M.R.B. and A.L.B. were removed, Jasmine gave birth to D.J.B. Based on domestic violence in the home, D.J.B. was also removed shortly after his birth.
The trial court could have reasonably determined that Jasmine was unable to provide for her children's emotional and physical needs and that she was unable to protect her children from danger now or in the future. See In re C.J., 392 S.W.3d 763, 770 (Tex. App.—Dallas 2012, pet. denied) (looking at domestic violence in the home in a best interests determination).
3. Jasmine's Abilities
The evidence was sufficient to find that Jasmine's abilities are limited. Throughout this case, Jasmine was unable to provide for her children, secure adequate housing for the children, or secure an income to provide nurturing or support. Jasmine has shown that when it comes to caring for her children or herself, she did not exercise good judgment. Jasmine exhibited an inability to attend the necessary counseling appointments or to seek help for her substance abuse; she also showed a propensity to participate and remain in abusive relationships.
Based on the evidence presented, the trial court could have reasonably concluded that Jasmine lacked the decision making skills and parental abilities to provide for and parent her children in a healthy and safe manner.
4. Programs Available to Assist Jasmine to Promote the Best Interest of the Children
The evidence clearly supported the conclusion that Jasmine needed assistance in her everyday life. Yet, even when the Department made resources available, Jasmine did not reach out for assistance. The psychological and drug counseling would have provided Jasmine with the skills to help with her continued drug use, as well as to escape violence in the home. Jasmine chose not to participate in the counseling required by the Department.
5. Jasmine's Acts or Omissions Which Indicate the Existing Parent-Child Relationship is Not a Proper One
The trial court heard testimony that Jasmine failed to protect the children from physical and emotional injury. Additionally, Jasmine had no explanation for A.L.B.'s injuries. Moreover, her testimony exhibited Jasmine's failure to take responsibility for A.L.B.'s injuries or the children's failure to thrive and malnutrition. Even further, Jasmine failed to exhibit a desire to learn how to properly care for her children.
D. Analysis
The record clearly supports Jasmine's inability to effect positive changes within a reasonable time. The trial court could have also reasonably believed the testimony that Jasmine (1) failed to provide a safe and stable home for her children, (2) failed to provide proof of employment, and (3) her inability to appropriately care for her children.
Reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, we conclude the trial court could have formed a firm belief or conviction that terminating Jasmine's parental rights to M.R.B., A.L.B., and D.J.B. was in each child's best interest. See In re J.F.C., 96 S.W.3d at 266; see also In re H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial court's order. See In re J.F.C., 96 S.W.3d at 266; see also In re H.R.M., 209 S.W.3d at 108.
CONCLUSION
The trial court found Jasmine committed the statutory grounds supporting terminating her parental rights and that terminating Jasmine's parental rights was in the children's best interests. Jasmine only appealed the best interest of the children finding.
Having reviewed the evidence, we conclude it was legally and factually sufficient to support the trial court's finding, by clear and convincing evidence, that termination of Jasmine's parental rights to M.R.B., A.L.B., and D.J.B. was in each child's best interest.
Accordingly, we overrule Jasmine's sole issue on appeal and affirm the trial court's order.
Patricia O. Alvarez, Justice